The Sentence Bob McDonnell Can Expect

Bob_McDonnell

UPDATE: on January 6, 2015, McDonnell was sentenced to only two years in prison, a substantial downward departure from the Sentencing Guidelines.  For a detailed discussion of the issues in the sentencing hearing, see my later post here.

Former Virginia Governor Robert McDonnell was convicted in federal district court on September 4, 2014 on eleven counts of corruption. His wife Maureen was convicted on nine counts, including one count of obstruction of justice that applied only to her.  The former Governor will be sentenced on January 6, 2015, and Mrs. McDonnell on February 20.  What kind of sentence can they expect?

McDonnell was found guilty on two counts of conspiracy, three counts of honest services wire fraud, and six counts of obtaining property under color of official right (Hobbs Act extortion). Mrs. McDonnell was found guilty on the two conspiracy counts, two counts of honest services wire fraud, four counts of Hobbs Act extortion, and the single count of obstruction of justice.  Each of these crimes carries a statutory maximum prison sentence: five years for conspiracy and twenty years for all the others.

So McDonnell stands convicted of nine 20-year crimes and two 5-year crimes. Does that mean the judge could impose the maximum for each, stack all the sentences on top of each other, and sentence McDonnell to 190 years in prison? Well, theoretically, yes – but that would never happen and would never hold up on appeal if it did. You don’t get those kinds of sentences unless you’re in Bernie Madoff territory, committing the greatest financial fraud in history (and even then, 150 years seemed a bit excessive for a 71-year-old guy).

At the other extreme, the Judge theoretically could give McDonnell probation and a fine, and no jail time at all. But that also seems very unlikely for a public official convicted of eleven felonies.

Between these extremes, how do we know what kind of sentence McDonnell is realistically facing?  In federal criminal cases we can actually get a pretty good idea, thanks to the Federal Sentencing Guidelines.

Historically, if a defendant was convicted of a twenty-year felony, the judge could impose a sentence of probation, twenty years, or anything in between.  Judges had the discretion to make sentences on multiple counts of conviction run consecutively (effectively stacking them up) or concurrently.  Sentences also could be greatly affected by how a prosecutor chose to charge a particular case. These factors led to concerns about widespread sentencing disparity, where defendants who committed similar crimes would receive dramatically different sentences depending on who their judge was, or what part of the country they were in, or what charges the prosecutor chose to bring.

In response to these concerns, Congress passed the Sentencing Reform Act of 1984, which created the United States Sentencing Commission.  The Commission is tasked with promulgating and regularly updating the  U.S. Sentencing Guidelines,  a detailed and complicated set of rules used to calculate the appropriate sentence in any federal criminal case. The Guidelines take into account the crimes that were committed, all of the details and circumstances of the offenses and related misconduct, and the details of the defendant’s criminal history. If the Guidelines are used correctly, similarly-situated defendants who commit similar crimes will end up facing a very similar sentence.

When first enacted, in order to promote the goal of sentencing uniformity, the Guidelines were mandatory. Unless very unusual circumstances justified a departure, the judge was required to impose a sentence that fell within the relatively narrow range of months in prison provided by the Guidelines.

This limitation on a judge’s historical sentencing discretion proved controversial, and various court challenges to the Guidelines followed. Finally, in the 2005 case of United States v. Booker, the Supreme Court ruled that the mandatory Guidelines regime violated a criminal defendant’s Sixth Amendment rights. The remedy, the Court held, was to leave the Guidelines system in place but make the Guidelines merely advisory rather than mandatory.

What has settled into place post-Booker is a system in which the Guidelines. although no longer mandatory, remain very important.  The sentence recommended by the Guidelines is still the starting point in any federal sentencing. Either side can argue that the judge should impose a higher or lower sentence than that recommended by the Guidelines, but the Guidelines provide the baseline from which that argument takes place.

In fact, even after Booker, data gathered by the Sentencing Commission shows that more than 50% of all federal sentences still fall within the recommended Sentencing Guideline range. In cases where the sentence is lower than the Guidelines, more than 60% of the time it’s because the government requested a lower sentence, based on factors such as the defendant’s cooperation in an ongoing investigation (not a factor in McDonnell’s case).  Judges in the Eastern District of Virginia, where McDonnell will be sentenced, are not known as particularly lenient sentencers, and tend to depart below the Guidelines even less than the national averages.

If we look just at the statistics, therefore, they suggest McDonnell has maybe a 1 in 5 chance of convincing the judge to go below the sentence recommended by the Guidelines.  Of course each case presents unique circumstances relevant to sentencing and the statistics only tell us so much, but they do suggest that McDonnell faces an uphill climb in persuading the judge to be more lenient.

Why do judges still follow the Guidelines?  By the time Booker was decided, judges and attorneys had worked with the Guidelines for nearly twenty years and everyone was familiar with the Guidelines system. Although they now have some additional discretion to vary from the Guidelines in appropriate cases, I think most judges agree with the overall goal of reducing sentencing disparity and believe that, in the majority of cases, the Guidelines do a pretty good job of fulfilling that goal.

There’s also the matter of appeal. When reviewing a sentence on appeal post-Booker, an appellate court considers whether the overall sentence is “reasonable” in light of the goals and requirements of sentencing spelled out in the federal criminal code. Those goals include fashioning a sentence that reflects the nature and seriousness of the offense, considers the defendant’s history, and adequately provides for punishment, deterrence, protection of the public, and rehabilitation of the defendant.

These are essentially the same factors that the Guidelines take into account. If a sentence is within the range recommended by the Guidelines, therefore, it’s going to be very difficult for a defendant to argue on appeal that such a sentence is “unreasonable.” In fact, some appellate courts apply a presumption that a sentence within the Guidelines range is a reasonable sentence. On the other hand, if the judge wants to depart from the Guidelines range (particularly to impose a greater sentence) he or she is to some extent going out on a limb and will need to explain why such a sentence is reasonable.   Sentencing within the Guideline range makes a sentence relatively bulletproof in the appellate court.

So what do the Guidelines call for here?  For you Sentencing Guidelines nerds (I know you’re out there) I’ll spell out my Guidelines calculations below. Bottom line, though, is that if the Judge follows the Guidelines, it looks to me like Bob McDonnell can expect a sentence in the range of 97-121 months, or about 8-10 years.  Maureen McDonnell fares a bit better because she is not an elected official.  Depending on how the judge chooses to handle her Obstruction of Justice conviction, her sentencing range could be 78-97 months or 63-78 months.

Remember, too, that in the federal system now there is no parole – the sentence you get is pretty much the sentence you serve, less some minor potential credits for good behavior.

A sentence of 8-10 years for the former Governor would certainly not be extraordinary. Former Governor Rod Blagojevich of Illinois is currently serving a fourteen-year sentence following his corruption conviction. Another Illinois Governor, George Ryan, served five years for corruption. And William Jefferson, a former Louisiana Congressman who also was tried in Virginia and who raised defenses similar to those raised by McDonnell – that he did not engage in “official acts” in exchange for the bribe payments – was sentenced to thirteen years in prison.

Could the judge be more lenient? Sure – McDonnell’s lawyers will no doubt argue, for example, that the judge should give the former governor credit for all of his years of public service. But most public corruption defendants also have long careers of public service, and that is already baked into the public corruption guidelines to some extent.  They may also rely on McDonnell’s claim that his actions were just the “Virginia way” and that he has been unfairly singled out for prosecution.

Whether the judge finds these arguments persuasive remains to be seen.  As of now, though, it appears that the man who was once considered a potential candidate for the White House may instead spend the equivalent of two presidential terms behind bars.

Update: 12/12/14 – the Washington Post is reporting today that the probation department has calculated a sentencing range for McDonnell with a minimum of 121 months.  That would mean their calculation came out at an adjusted offense level 32, two levels higher than what I calculated below.  Offense level 32 gives a sentencing range of 121-151 months.  If the Post’s information is correct, a possible reason is that the probation department has recommended an additional two level upward adjustment for obstruction of justice under section 3C1.1, based on a finding that McDonnell lied on the stand during the trial.  The Presentence Report is not yet public so we can’t know for sure the basis of their calculations.

Questions?  Comments?  Come up with a different number?  Leave me a comment below.

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Sentencing Guidelines Calculations – Robert McDonnell

Applicable Guideline: 2C1.1

Base offense level for public official: 14   [2C1.1(a)(1)]

Case involved more than one bribe: add 2 levels   [2C1.1(b)(1)]

Value of the bribes: >$120,000 and < $200,000: add 10 levels [2C1.1 (b)(2),  cross referencing Guideline 2B1.1(b)(1)(F)]

Defendant was an elected public official: add 4 levels   [2C1.1(b)(3)]

14 + 2 + 10 + 4 = Adjusted Offense Level of 30

Criminal History Category: 0 pts (no criminal record) [4A1.1]

Sentence for Offense Level 30, Criminal History Category I: 97-121 months.

Maureen McDonnell 

Applicable Guideline for Corruption Counts: 2C1.1

Base offense level for a public official: 14   [2C1.1(a)(1)]

Case involved more than one bribe: add 2 levels   [2C1.1(b)(1)]

Value of the bribes: >$120,000 and < $200,000: add 10 levels [2C1.1 (b)(2), cross referencing Guideline 2B1.1(b)(1)(F)]

14 + 2 + 10 = Adjusted Offense Level of 26 for Corruption counts

Applicable Guideline for Obstruction of Justice: 2J1.1

Base offense level: 14

No applicable specific offense characteristics

Adjusted offense level of 14

Pursuant to 3D1.4(c), because this is more than 9 levels lower than the adjusted offense level for the corruption counts, this count is disregarded in calculating the final offense level, leaving her at an adjusted offense level of 26.

However, the judge could choose to apply the Chapter 3 Adjustment for Obstruction of Justice under 3C1.1, which would add two levels and put her at 28.

Criminal History Category: 0 pts (no criminal record) [4A1.1]

Sentence for Offense Level 26, Criminal History Category I: 63-78 months.

Sentence for Offense Level 28, Criminal History Category I: 78-97 months.

Note: it’s unclear whether the First Lady of Virginia is a “public official” within the meaning of 2C1.1(a)(1).  The Application Notes for 2C1.1 suggest that she is because she acts in an official capacity on behalf of the government of Virginia, so that’s how I have calculated it.  See Application Note 1(C).  If the Judge disagrees, however, then her base offense level would be 12 rather than 14, and all calculations get reduced by two levels.  

 

5 thoughts on “The Sentence Bob McDonnell Can Expect

  1. Thanks for the summary Randall, it’s great to see the actual numbers. My thought is that anything approaching a Guidelines sentence for either defendant in this case would be a travesty. Anyone familiar with federal corruption cases knows that the conduct here does not come remotely close to what one sees in the typical bribery case; these defendants are simply far less culpable. This was a stretch for DoJ that may or may not withstand appeal, but for that same reason the sentences needs to be substantially lower than in a true quid-pro-quo bribery case. The Supreme Court has repeatedly authorized district courts to vary where the Guidelines are a poor fit — this is just that kind of case.

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